*1 dеsign patents were invalid. Lexmark pointed any genuine has not fact dis-
putes that would undermine this conclu-
sion. We therefore AFFIRM the district holding design pat-
court’s that Lexmark’s
ents are invalid.
IX. CONCLUSION reasons,
For the aforementioned we AF-
FIRM the district court on all claims ex-
cept the dismissal of some of Static Con-
trol’s counterclaims under the Lanham Act law,
and North state which Carolina we and REMAND for
REVERSE further
proceedings opinion. consistent with this AMERICA;
OBAMA FOR Democrat- Committee;
ic National Ohio Demo- Party, Plaintiffs-Appellees,
cratic HUSTED, Secretary State;
Jon Ohio Dewine, Attorney General,
Mike Ohio
Defendants-Appellants (12-4055),
National Guard Association of the Unit- States, al.,
ed et Intervener Defen- (12-4076).
dants-Appellants
Nos. 12-4076.
United States of Appeals, Court
Sixth Circuit.
5,Oct. *2 Consovoy, BRIEF:
ON William S. El- Lin, Morrissey, bert Brendan J. J. Michael LLP, Connolly, Wiley Washington, Rein D.C., N. Coglianese, Richard Michael J. Schuler, Sestile, Lindsay Attorney M. Ohio Office, Columbus, Ohio, Ap- General’s for Dickerson, pellants 12-4055. James M. LLP, Bingham Greenebaum Doll Cincin- nati, Ohio, Appellants for 12-4076. McGinnis, McTigue, J. Mark A. Donald J. Colombo, Corey McTigue & McGinnis LLC, Columbus, Ohio, Bauer, Robert F. Coie, D.C., Washington, Perkins Jennifer Katzman, America, Chicago, Obama for Il- linois, Appellees. Joseph, Lawrence J. D.C., Sekulow, Washington, Jay Alan Justice, American Center for Law & D.C., Sandler, Washington, Joseph E. Eliz- Getman, Sandler, Reiff, Young abeth F. & Lamb, P.C., D.C., Washington, Paul J. Gains, County County Mahoning Board BACKGROUND Ohio, Commissioners, Youngstown, Ste- History I. Procedural Hartman, Hartman, Kerger & phen D. July On Plaintiffs Obama for Toledo, Ohio, LLC, Kathleen M. Clyde, America, the Democratic National Com *3 Kent, Ohio, for Amici Curiae. mittee, the Ohio Party and Democratic filed a in complaint against district court WHITE, Before: and Circuit CLAY Husted, Jon in his capacity official as Sec HOOD, Judge.* Judges; District Ohio, DeWine, retary of State of and Mike capacity Attorney in his official as General CLAY, J., opinion delivered the alleged Ohio. Plaintiffs that Ohio Rev. court, HOOD, D.J., joined. in which § Code 3509.03 was unconstitutional inso WHITE, 487-43), (pp. J. delivered a imposes far as it on voters a in separate opinion concurring part and deadline of 6:00 on the Friday before dissenting part. Day Election in-person early for voting.1 day,
On the same Plaintiffs moved for a preliminary injunction preventing the stat OPINION They
ute’s enforcement. argued that the CLAY, Judge. Circuit statutory relevant provisions “burden the fundamental right to vote but are not nec Husted, Secretary Jon the Defendants essary any sufficiently weighty state Ohio, DeWine, of State of and Mike (R. 2, 2.) interest.” Attorney (collectively General of Ohio 1, 2012, August On military numerous “State”), joined by represent- Intervenors service associations filed a motion to inter- military numerous service associations vene, and the district granted court (“Intervenors”), appeal from the district motion. The State and op- Intervenors granting court’s order Plaintiffs’ motion posed preliminary Plaintiffs’ motion for a preliminary injunction. for a The district injunction. They argued that the State’s enjoined enforcing court the State from providing military interest voters with § Ohio Rev.Code 3509.03 to the extent in-person early voting added time and the prevents it some Ohio voters from pro- burden on local boards of elections of casting in-person early ballots viding that same extra time for all voters three before the November 2012 elec- justified imposing a different on deadline tion on the basis that the statute violates military and overseas voters than all other Equal Protection Clause of Four- voters. teenth Amendment. For the reasons set below, AFFIRM hearing forth we the district The district court conducted granting preliminary court’s order in- on August Plaintiffs’ motion on 2012. junction. exhibits, parties The filed numerous in- * Hood, Joseph The Honorable M. United seas are States voters” those voters identified Judge District for the Eastern District of Ken- federal and Uniformed Overseas Citizens Ab- tucky, sitting by designation. Voting § sentee Act of U.S.C. 1973ff (“UOCAVA”), by Military as amended 1. All references to the election or Election Act, Empowerment Voter L. Overseas Pub. Day refer to the November 2012 election. (2009) Act”), ("MOVE 123 Stat. 2190 three-day period prior Day to Election corresponding sections of the Ohio Elec- specifically Saturday, refers to November 2012; 4, 2012; Code, § Sunday, Rev.Code November and Mon- Ohio 3511.01. "Non- day, "Military military eligible November and over- voters” all other voters. following day. prevent To morning of the history, declarations
eluding legislative disenfranchising from exрerts, problems voting similar military officers career and to ease the strain studies voters in the future demographic and statistical single all voters on a accommodating and non- of agencies governmental various no-fault absen- August On State established organizations. day, the governmental opin- court issued an 2005. The new rules the district tee October motion Plaintiffs’ absentee voters to granting and order the need for ion eliminated The district injunction. preliminary for not have an excuse (Sub. § 3509.03violated concluded that H.B. court 2005 Ohio Laws 40 day. See 234). to the extent that Protection Clause Equal in-person After the creation of early voting different it set a could cast an voting, any registered voter *4 non-military voters because deadline for board of appropriate ballot at the absentee insufficiently “the State’s interests Monday before through elections office Plain- justify injury to weighty to Rev. (amending the election. See id. Ohio — -, -, No. F.Supp.2d tiffs.” 3509.02-3509.04). §§ Code 3765060, 2:12-cv-00636, at *10 2012 WL by the district The evidence considered 2012). (S.D.Ohio 31, Aug. The district of Ohio large that a number court showed enforcement enjoined court early voting to utilize the new voters chose early in-person § ordered that 3509.03and through procеdures in elections from 2006 voting be available to during the Early voting peaked the enact- the same terms as before election, 1.7 mil- approximately when House Bill ment of Amended Substitute their ballots before elec- lion Ohioans cast Bill 224 and Substitute Senate 295. Id. at registered 20.7% of day, amounting -, at *22-23. The WL and 29.7% of the total votes cast. injunction ensures that all preliminary counties, largest approxi- In Ohio’s twelve overseas, military, and non- Ohio voters— 340,000 voters, or about 9% of the mately military opportuni- afforded the same —are counties, total votes cast in those chose early voting that was ty in-person elections early vote at a local board of prior available to them to the enactment of of Ohio’s Using office. data from seven § 3509.03. counties, that, study largest projected one appeal The State and Intervenors now 105,000 Ohioans approximately granting pre- the district court’s order final person during cast their ballots in injunction. liminary September On the election. In three before the district court denied State’s voted ear- approximately 1 million Ohioans stay pending appeal, motion to its order them chose to cast their ly, and 17.8% of preliminary injunctiоn and the remains In conducted after person. poll ballots in effect. election, early voters 29.6% of voting within one week of election reported II. Facts day. Early Voting A. In-Person in Ohio ballots who chose to cast their Voters of different early voting early tended to be members Ohio introduced voted groups than those who largely response myriad problems demographic to the day. Early voters were “more by voters 2004 election. on election faced election, election-day voters to be wom- likely than During that Ohio voters faced en, older, edu- that, and of lower income and lines and at some long wait-times (R. 34-31, Pis.’ Ex. early attainment.” polling places, stretched into cation 1.) 8, 2012, Data from Cuyahoga May and Franklin On the General Assembly suggests Counties voters were repealed the then-suspended H.B. 194 disproportionately African-American and through Substitute Bill Senate 295. How- large majority early in-person that a ever, organizers neither the of the referen- (82% County) votes in Franklin were cast petition dum nor the legislature Ohio weekend, weekdays, after hours on on the thought to repeal attack or the bill contain- Monday or on the before the election. the technical changes, H.B. which Therefore, remained in effect. even Legislative Changes B. to In-Person bill, though original H.B. was Early Voting repealed, the changes technical contained July On Ohio Governor John in H.B. 224 place, remained in and Ohio signed Kasich Amended Substitute House voters were still left with inconsistent Bill an omnibus bill that made broad deadlines. Nonmilitary voters could cast changes to Among Ohio election law. oth- ballots in-person until 6:00 p.m. on the er things, legislature the Ohio apparently Friday before the election. But military change intended to the deadlines for in- and overseas voters had two deadlines: person early voting from Monday be- Friday p.m. pursuant 3511.02, § at 6:00 fore the election to 6:00 Friday on the and the close of the polls on day Instead, before the election. H.B. 194 cre- *5 pursuant §to 3511.10. separate ated two contradictory dead- Friday lines: one on Monday. one on In order to confusion, correct this De- For Ohio Rev.Code fendant Husted construed the statute to § 3509.03 contained the Monday former apply generous the more deadline con- deadline, § but an amended im- 3509.01 § tained in military 3511.10 to and over- posed Friday the new Military deadline. seas Attempts by voters. local bоards of and overseas voters found themselves in provide elections to in-person early voting position, § much the same with 3511.02 to non-military voters through Monday deadline, containing the former and an before the election were denied § amended 3511.10 containing the new Secretary of State on the grounds that the one. statute permit 15, does not it. August On mistake, In an attempt to correct its 2012, Defendant Husted issued Directive Assembly Ohio General passed Amended 2012-35, instructing the local boards of 224, Substitute House Bill which became election that were to regular maintain 27, effective on October 2011. H.B. 224 2, business hours between October 2012 fixed inconsistent deadlines 2, and November 2012. This directive § 3511.02, § 3509.03 and changing the eliminated the local boards’ discretion to deadlines for all voters to p.m. 6:00 on the be open weekends that period. Friday before the election. Before the 2, 19, Between October 2012 and October technical corrections H.B. 224 could 2012, the boards must close at p.m. 5:00 effect, however, take petition with more During election, the last two weeks of the 300,000 than signatures was filed put the boards will remain open until 7:00 law, election omnibus H.B. to a may but not remain open afterwards or on petition referendum. referendum was the weekends. The directive does not ad- certified the Secretary of State on De- dress office hours on the final three-day 9, 2011, cember pursuant to the Ohio period when, Constitution, Day, before Election accord- implementation of H.B. statute, only military 194 to the suspended was for the 2012 and over- cycle. person. seas voters can cast ballots in
428
Elections,
663, 670,
383
Bd.
U.S.
State
DISCUSSION
of
(1966).
169
16 L.Ed.2d
86 S.Ct.
Review
of
I. Standard
basic,
even the most
rights,
“Other
of a
grant
court’s
a district
review
We
is undermined.”
illusory
right
if the
to vote
an abuse of dis
injunction for
preliminary
1, 17,
Sanders,
84
Wesberry v.
Congrega
&
S. Ohio
cretion. Chabad of
(1964);
see also
11 L.Ed.2d
S.Ct.
Cincinnati, 363
City
Lubavitch v.
of
356, 370, 6
Hopkins,
v.
Yick Wo
Cir.2004).
(6th
While
F.3d
(1886)
(finding
L.Ed. 220
S.Ct.
deny
pre
or
grant
ultimate decision
all
“preservative
to vote is
of
that the
reviewed for an
liminary injunction
“
protected
to vote is
rights”).
‘The
discretion,
review the district
we
abuse of
initial allocation of the
in more than the
and its
conclusions de novo
legal
court’s
applies as
Equal protection
franchise.
error. Hunter v.
findings for clear
factual
”
well
to the manner of its exercise.’
Elections,
Bd.
635 F.3d
Cnty.
Hamilton
Brunner,
v.
League Women Voters
Cir.2011).
(6th
“This standard of
(6th Cir.2008)
(quoting
Bush
F.3d
to the district
‘highly deferential’
review is
Gore,
98, 104, 121
525, 148
v.
U.S.
(quoting
Id.
court’s decision.”
Cеrtified
(2000)).
citizen has a
L.Ed.2d 388
“[A]
Network,
Cleaning
Dry
L.L.C.
Restoration
constitutionally protected right
partici
(6th
Corp.,
v. Tenke
Cir.2007)).
equal
on an
basis with
pate
will
elections
injunction
“The
seldom be
court relied
jurisdiction.”
unless the district
citizens in the
Dunn
disturbed
other
fact,
findings
erroneous
upon clearly
Blumstein, 405
law,
governing
improperly applied
(1972).
“Having once
legal
an erroneous
standard.” Mas
used
terms,
equal
granted
to vote on
Ohio,
Emps.
Sys.
Ret.
cio v. Pub.
not, by
arbitrary
later
may
the State
*6
(6th Cir.1998).
310,
F.3d
312
treatment,
disparate
person’s
value one
Bush,
another.”
531
seeking
preliminary
a
in- vote over that of
U.S.
plaintiff
“A
likely
104-05,
525;
to
junction must establish that he is
at
121 S.Ct.
see also Wesber
merits,
likely to
(“Our
that he is
17,
succeed on
ry, 376
429
(3d
Calio,
cases,
Supreme
v.
ballot-access
Biener
Court has
Cir.2004) (“The scrutiny
depends on
vitality
test
confirmed their
in a much broader
[regulation’s]
plaintiff’s]
effect on
range
voting rights
[the
contexts. See
rights.”).
Bd.,
Cnty.
Marion
Election
Crawford
181, 204,
plaintiff alleges only
If a
that a
(“To
(Scalia, J.,
L.Ed.2d 574
concurring.)
differently
him or her
than
state treated
respecting
evaluate a law
the right
to
similarly situated
without a corre
vote—whether it governs
qualifica-
voter
sponding
right
burden on
fundamental
tions,
selection,
candidate
or the voting
vote,
straightforward
rational basis
process—we
approach
use the
set
out
standard of review should be used. See
”).
Burdick....
The Burdick Court stat-
Comm’rs,
McDonald v. Bd. Election
ed the standard as follows:
802, 807-09,
U.S.
S.Ct.
L.Ed.2d
A court considering
challenge
to a
(1969) (applying
rational basis to a
state election law must weigh “the char-
prohibited plaintiffs’
state statute that
ac
acter
magnitude
of the asserted in-
cess to absentee ballots where no burden
jury to the rights protected by the First
shown); Biener,
on the
to vote was
and Fourteenth
Amendments
(applying
ble
when a state
Comm’rs,
free
and Bd. Election
to have violated the
association
(1969),
1404,
On the
Plaintiffs introduced
weekend
prior
hours
to the final
extensive
significant
evidence that a
num-
weekend were
eliminated
Directive
ber of Ohio voters
in fact
precluded
will
be
2012-35, “thousands of voters who would
from voting without the additional three
during
have voted
days
those three
will
(See,
of in-person early voting.
e.g.,
not be able to
exercise their
2.)
cast a
R.
Pis.’ Ex.
The district
—
at -,
vote
person.”
F.Supp.2d
court credited statistical studies that esti-
100,000
WL
at *7. Based
approximately
mated
on the
Ohio voters
record,
evidence in the
would choose
this conclusion
three-day
to vote
was
period
clearly
Day,
before Election
and that these
erroneous. Because the dis
“women,
voters are
trict
disproportionately
old-
court found that
Plaintiffs’
er,
burdened,
and of lower income and education vote was
properly applied
it
—
at-,
attainment.”
F.Supp.2d
Therefore,
Anderson-Burdick standard.4
(N.D.Ala.1972),
purportedly
Intervenors cite to
generally
several cases
appli
dealt with
cable,
applying a rational basis
nondiscriminatоry
regulations,
standard to similar
election
regulations,
Elections,
but these cases were ei-
see
v. Ill. State Bd.
No.
Gustafson
*9
Burdick,
06-C-1159,
(N.D.Ill.
ther decided before Anderson and
Sept.
if Plaintiffs can show
shown).
no burden
the
to vote was
rights
not sufficient-
on
voting
den on their
However,
both;
likely to
has done
it has
are
succeed on
the State
ly justified, they
disparately
State has violated the
classified voters
and has bur-
their
that the
claim
Therefore,
dened their
to vote.
both
Equal Protection Clause.
justifications proffered by the State must
B.
Justifications
Ohio’s
be examined to determine whether
the
challenged statutory
equal
scheme violates
justifications
two
offers
The State
protection.
pro-
We will address each
in-person early voting for
eliminating
for
justification
posed
in turn.
the
three
nonmilitary voters
First, it
Day.
asserts that
before Election
1. Burden on Local Boards
county
local
boards of elections are too
of Elections
busy
Day
for Election
to accom
preparing
halting
6:00
The
early
p.m.
in-per-
voters after
on the
State contends that
modate
Second,
early
Friday
the election.
the
son
at 6:00
on
Friday
before
the
unique challenges
necessary
the
before
election is
give
State claims that
to
military service members and
local
of elections
county
enough
faced
boards
time to
Election
justify maintaining in-person
prepare
Day.
their families
for them but
for other
State
the affidavit of
Deputy
introduced
Secretary
Assistant
State
Ohio voters.
Matthew
Damschroder,
explained
myriad
who
correctly argues that its two
The State
tasks
complete
that the boards must
dur-
to
justifications
separate
are relevant
two
ing
Saturday, Sunday,
and Monday
aspects
equal protection analysis:
Among
before the election.
these duties
on local
justification
first
burden
—the
(1) validating, scanning,
are:
and tabulat-
elections—should be considered
boards of
ing
that have been
absentee ballots
cast in-
to the State’s restriction of vot-
relation
person
prior
received
mail
justification—
ing
while the second
rights,
(2)
weekend,
final
securing all the neces-
military
accommodate
need to
voters
cards,
sary ballots,
registration
instruction
and
be
their families—should
considered
forms,
for use by
and other materials
vot-
disparate
the State’s
relation to
treatment
(3)
ers,
еnsuring that each polling place
of military and
voters. See
equipment, tables,
has the proper voting
two
Br. 46 n.3. These
State’s
strands
chairs,
(4)
signs,
ensuring
that each
part
equal protection analysis.
same
of the
polling place
and making any
is accessible
“nonsevere,
merely placed
If the State
temporary improvements that are neces-
nondiscriminatory restrictions” on all vot-
(5)
sary,
installing ramps,
prepar-
such as
ers,
would
if
the restrictions
survive
registered
official lists
sufficiently justified.
could be
See Craw-
including
for those
who
notations
(dis-
ford,
at
S.Ct. 1610
ballots,
already requested
have
absentee
application
of the
cussing
Anderson-
(6) handling any
last-minute issues
“reasonable,
nondis-
Burdick standard
arise, including moving polling places
restrictions”).
criminatory
On the other
workers who are
replacing poll
sud-
hand,
merely
if the State
classified
(See
35-9,
denly
R.
Defs.’
unable
serve.
disparately
placed no
but
restrictions
3.)
Ex.
vote,
their
right to
classification would
Granted,
responsibilities
if it had a rational
the list of
survive
basis.
McDonald,
long,
89 S.Ct. boards
elections is
the staff
*10
ship
early voting
for and
that
prepare
might
volunteers who
ad-
cause. While
undoubtedly have
minister elections
much
speak
these counties cannot
for all of
the final few
accomplish during
counties,
Ohio’s
the State introduced no
election. But the State has
before the
specific evidence to
any
refute
of their
indicating how
shown no evidence
this
assertions, nor
suggested
has it
that
election will be more onerous than the
experience of
unique.
these counties is
numerous other elections that have been
standard,
Under the Anderson-Bwrdick
successfully administered in Ohio since
we
weigh
must
“the character and magni
early voting
put
place
was
into
in 2005.
tude of
injury” against
the asserted
time,
During the Ohio boards of elec-
“precise
put
by
interests
forward
the State
effectively
presi-
tions have
conducted a
...
taking into consideration the extent to
gubernatorial
dential election and a
elec-
which those interests make it necessary to
tion,
many
not to mention
other statewide
Burdick,
burden
plaintiffs rights.”
elections, all
simultaneously
and local
while
The State asserts that
and over
extensions and
impli-
similarly
position.
seas voters are not
situated to
cations of Plaintiffs’
If states are
equal protection pur
provide
other Ohio voters for
forced to
the same accommoda-
poses.
Equal
every
they currently
“The
Protection Clause does
tions to
voter that
simply keeps
military
classifications. It
to
provide
not forbid
and overseas
time,
decisionmakers from treat
such as
governmental
flexibility
added
and extra
ing differently persons
may simply
who are in all rele
states
special
eliminate these
Hahn,
(See
respects
Nordlinger
altogether.
vant
alike.”
v.
accommodations
R. 35-
5.)
1, 10,
However,
virtually
L.Ed.2d
Defs.’ Ex.
at
(1992)
added);
(emphasis
special voting provisions
see also Tri- all of the
in feder-
Comm’rs,
Health, Inc. v. Bd.
problems
al and Ohio law address
that
(6th Cir.2005)
(finding
two
military
arise when
and overseas voters
groups
hospitals
similarly
were not
situ
are
voting jurisdictions.
absent from their
Walker,
equal protection purposes
ated fоr
because See Doe v.
746 F.Supp.2d
(D.Md.2010)
“they
in several material
re
(describing
differ[ed]
670-71
pur-
In
spects”).
many respects,
pose
absent mili
of the MOVE Act
facilitating
as
tary
similarly
and overseas voters are not
receiving
sending
of absentee ballots
overseas).
Typically,
They
situated to other Ohio voters.
from
not similarly
are
country
their absence from the
is the fac
all other
in
respect,
this
situated
distinct,
justified
tor that makes them
and this is
and states are
accommodating
in
exceptions
special
particular
reflected
ac
their
respect
needs. With
to in-
commodations afforded to these
un
person voting,
groups
similarly
the two
situated,
der federal and state law.
and the State has not shown that
it would be burdensome
early
to extend
respect
in-person early voting,
With
voting to all
argument
voters.
Its
to the
however, there is no relevant distinction
contrary
is not borne out
the evidence.
groups.
between the two
The State ar-
supra
Part II.B.l.
gues
military
voters need extra
Equally
time because
could be sudden-
worrisome would be the result
ly deployed.
any
permitted
pick
But
voter could be sud-
if states were
and choose
denly
away
prevented
among groups
similarly
called
from vot-
situated voters
time,
Day.
any
personal
special voting privileges.
on Election
At
to dole out
Par-
contingencies
emergencies
legislatures
give
like medical
tisan state
could
extra
arise,
trips
po-
early voting
groups
sudden business
could
time to
that tradition-
officers, firefighters
ally support
party
lice
and other first
im-
power and
could be
called to
responders
suddenly
pose corresponding burdens on the other
party’s
Clingman
serve at a moment’s notice. There is no
core constituents. See
injunction must es-
seeking
preliminary
Beaver,
125 S.Ct.
(2005) (O’Connor,
likely
he is
to succeed on the
tablish that
L.Ed.2d
merits,
likely
irrepara-
he is
to suffer
(“[Particularly where
J.,
[vot-
concurring)
preliminary
harm in the absence of
ble
discriminatory ef-
have
ing restrictions]
relief,
equities tips
that the balance of
for concern
fects,
increasing cause
there
favor,
injunction is in the
and that an
his
using electoral
may be
power
that those in
Winter, 555
public interest.”
U.S.
compe-
to electoral
to erect barriers
rules
result,
equitable
365. The
factors
tition.”).
dangerous
this
To avoid
weigh
also
injunction test
preliminary
the asserted
carefully weigh
courts must
injunc-
granting
preliminary
favor
prof-
interests”
“preсise
injury against
Burdick,
tion.
fered
the State.
Although the State
voters, fact, time available to those plaintiffs “A harm liminary injunction. and will not be changed has not preliminary injunction of a from the denial order. district court’s by affected fully irreparable compensable if it is not is Rather, that its deci- the State must show 511 by monetary damages.” Corp., Tenke early voting time of sion to reduce rights When constitutional F.3d by justified is a “suffi- non-military voters irreparable in- impaired, are threatened or interest. The State has ciently weighty” Ky. v. jury presumed. ACLU of justify which would no interest proposed McCreary County, Ky., F.3d by vote a con- reducing opportunity Cir.2003). (6th A restriction on funda- voting population. segment siderable mental to vote therefore constitutes v. injury. See Williams Saler- irreparable pro- that neither interest
Having found Cir.1986) (2d no, (finding justify by the State is sufficient posed the denial of the to vote is in-person early voting the limitation on harm”). “irreparable non-military Ohio imposed on all likely to succeed we find that Plaintiffs equities public of and the The balance that Ohio Rev.Code on their claim weigh in Plaintiffs favor. interest also 3509.03, § the Ohio implemented as non-military Ohio voters’ The burden on State, Equal violates the Pro- Secretary of ballots, ability particularly to cast when tection Clause. likely unable many of those voters will be Day during day Election to vote on Equitable Factors III. boards of elections because work local schedules, outweighs any corresponding preliminary party When a seeks State, shown on the which has not potential of a con burden injunction on the basis cope will unable to violation, local boards be “the likelihood suc stitutional three extra be the deter with on the merits often will cess Caruso, successfully they have done minative factor.” Jones —as Cir.2009). (6th states have “a past have elections. While We F.3d ability in their to enforce likely strong interest that Plaintiffs are suc concluded Hunter, requirements,” election law equal protec state the merits of their ceed on public “strong has a ad 635 F.3d at we nevertheless challenge, but po- exercising the ‘fundamental interest remaining three factors dress the Gonzalez, to vote.” Purcell v. right’ “A litical injunction plaintiff test. preliminary WHITE, HELENE N. Judge S.Ct. Circuit (2006) Dunn, (quoting (concurring part dissenting in part). 995). “That interest is best served Except respect with remedy, to the I by favoring ensuring enfranchisement and join in the affirmance but arrive there qualified voters’ exercise of their different route. Hunter, to vote is successful.” 635 F.3d at public 244. The interest therefore favors
permitting many qualified as voters to vote I possible. as Because the district court equitable found that the properly factors First, I think it clear that the elimina- Plaintiffs, favor its decision to issue a pre- tion of non-UOCAVA voters’ access to in- liminary injunction appropriate. was person absentee ballots after before, Friday fluke, the election was not a Remedy District IV. Court’s but rather the considered intent of a ma- argues The State that the district court’s jority legislators. of Ohio’s remedy was overbroad because it could be affirmatively require read to the State to early voting
mandate hours A three-day period prior to the election. We *14 enacting In H.B. 1941 and H.B. 2242 the read the do not district court’s order Assembly Ohio General attempted to treat way. clearly this The order restores the all equally by imposing voters uniform ante, quo returning status discretion to in-person absentee-voter deadline. H.B. local boards of elections to аllow all Ohio during Saturday, section, 3509.01(B)(3),3 voters to vote November 194 included a new 2012; 4, 2012; Sunday, November and imposing p.m. Friday the 6 deadline for in- Monday, November 2012. Because Ohio voters, person neglected absentee but § Rev.Code 3509.03 is unconstitutional to 3509.03(1) parallel amend sections and extent that it prohibits 3511.02(C)(12), permitted which non-UO voting during period, voters from this the CAVA and to obtain UOCAVAvoters and enjoined preventing State is from those in-person submit absentee ballots their early voters from participating voting. reg local election boards until the close of affirmatively required But the State is not day day ular business the before election open to order the boards to be for (PID 418-19, 421, 436). prior The statute order, voting. Under the district court’s a provision applied only also contained that discretion, just the boards have as 3511.10, to UOCAVA section allow § had before the enactment of 3509.03. by in-person them to obtain and vote remedy The district court’s was therefore polls absentee ballot until the close on appropriate. day. legislature apparently
election The CONCLUSION provision, this caught and amended that in H.B. placing section UOCAVA vot reasons, foregoing For the we AFFIRM ers on the footing samе as non-UOCAVA granting pre- the district court’s order liminary injunction. by allowing in-person voters them absen 3509.01(B)(3). § 1. Amended Substitute House Bill Number 3.Ohio Rev.Code 194, 2011 Ohio Laws 40.
2. Amended Substitute House Bill Number 224, 2011 Ohio Laws 46. legisla- H.B. considering When time that absent “during the
tee-voting 3509.03(1) that sections ture understood be person be cast may voter’s ballots 3511.02(0(12) by amended (PID 441) had been After the election.” fore an debated not H.B. H.B. that it had failed realized legislature H.B. as well. repeal whether to permitted existing provisions amend Thus, lines. along party was divided vote by in-person vote to obtain and voters contrary, notwithstanding assertions to the Monday be through the ballots absentee the failure to question there is no by it H.B. day, passed fore time H.B. 194 H.B. 224 at the same repeal and amended sections vote unanimous not inadvertent. That repealed was was 3511.02(0(12) 3509.03(1) make all is, knew that the net effect legislature 993). (PID uniform deadlines S.B. enacting H.B. 194 and repealing Thus, H.B. 194 and the combined effect of Friday deadlines of 295 would be that the weekend 224 was to eliminate H.B. repeal of H.B. H.B. 224 would survive everyone; only difference between clear, however, whether the 194. It is less voters was non-UOCAVA UOCAVA provi- was aware that another legislature only one sec that for non-UOCAVA statute, 3511.10, of the former section sion amendment, required law prior tion of the by by H.B. but had not been amended voters two sections re and for UOCAVA provision H.B. and therefore amendment, of which was quired one in its unamended state and would continue by H.B. 194 and the other by amended conflicting end-of-election- provide for a stayed by H.B. 194 was H.B. When absentee day deadline for later re referendum certification and 809-10). (PID UOCAVA 295,4 provision of H.B. pealed S.B. Friday added the deadline 194 that B effective, original but the longer was no *15 3509.03(1) of sections and versions 3509.03(1) in-person ends non Section 3511.02(0(12) by H.B. had been amended voting p.m. at 6 absentee UOCAVA deadline, Friday 224 reflect the day. election It is silent Friday before suspended. effect of that statute was not in- hours and for regarding all other Further, to section 3511.10 the amendment voting voting begins, once person absentee absentee-voting 3501.10(B) that had made UOCAVA requires except section Friday with the new hours consistent open to remain until 9 election offices resulting in suspended, deadline was also The day registration. the last of stat language allowing the reinstatement county board prohibit ute does absentee-voting through in-person UOCAVA absen permitting elections from day provi and a cоnflict between the two evenings in the voting tee relating pre-election to UOCAVA voters—the final preceding sions weekends Nevertheless, Secretary ab providing original day weekend. version close, setting and the mandato polls sentee until the Husted issued a directive forbidding local elections of corresponded ry H.B. 224 deadline that hours maintaining night and weekend H.B. 224 deadline of 6 fices from same non-UOCAVA 809-10). (PID 804-05, 791-93, voters.5 This di- hours for non-UOCAVA p.m. Friday all counties to Secretary Husted directed Senate Bill Number 2012 4. Substitute following regular adopt business hours: Ohio Laws 105.
439 incorporated rective in the voting may ask, is re- One understandably then, how plaintiffs challenge strictions and the court Ohio’s restrictions on in-person absentee Therefore, ruled unconstitutional. I con- voting can violate the Constitution. For 3509.03(1) sider both section and the Sec- me, the answer is that the Supreme Court retary’s in considering directive the bur- has since applied the Anderson/Bwrdick6 den on voters. non-UOCAVA balancing evaluating test a state’s inter regulation elections, est and that
II test, in applying that it proper to look at There is no constitutional right to an ground facts on the in Ohio. absentee ballot. This is made clear
McDonald v. Board
Election Commis
Ill
sioners,
22
The instant case
prelimi
raises several
(1969), Prigmore
L.Ed.2d 739
Renfro,
v.
nary questions that affect the result. The
(N.D.Ala.1972),
356
427
F.Supp.
summ.
first is which
governs
standard
our consid
aff'd, 410
93
U.S.
S.Ct.
35
eration of plaintiffs’ claims—the rational-
(1973),
Skinner,
L.Ed.2d 582
O’Brien v.
employed
basis test
in the absentee-ballot
U.S.
S.Ct.
cases, or the more recent
(1974),
Osser,
Goosby
Anderson/Bur-
test,
dick balancing
which weighs the
(1973).
bur
S.Ct.
L.Ed.2d 36
den on the
to vote against the state’s
vote,
protects
Constitution
important regulatory interests. The Su
only
it is
when there is no alternative
preme Court has not decided an absentee-
vehicle for
that the Supreme Court
ballot case since the
has found a
to an absentee ballot.
Anderson/Bwrdick
announced,
test was
but
Skinner,
two circuit
Compare
529-31,
courts
U.S. at
have, and both applied the
519-23,
balancing
740 and
test.
Goosby,
S.Ct.
McDonald,
In Price v. New York
fact the
this would be
hours,
concern that voters
raising
and the
board
great
ter. The burden would be
Ohio,
necessary
it
to abandon their
plau
which are
would find
rationales offered
extremely long
to vote due to
attempts
their face but find
sible and rational on
1082-83).
(PID 1077,
record,
To be
would not out wait times
support
little
in the
sure,
studies as well do not establish
precluded from
these
weigh the burden on those
However,
if
precluded
voting
will be
from
that voters
exercising
their
to vote.
V
in-person
and weekend
absen
after-hours
voting
they
tee
is not restored. But
key
distinguishing factor here is
strong
significant
evidence that a
number
grantеd
that Ohio voters were
the statuto-
largest
in Ohio’s two
counties
of voters
ry right
in-person
voting
absentee
depend
have come to
on after-hours and
through
close of business hours on the
voting
exercising
weekend
as a vehicle for
'
Monday
day,
before election
and the elec-
their
to vote.7
largest
tion boards of the
broadly
counties
Still,
voting
no case has held that
has to
embraced and facilitated that
in
right,
re-
question
be convenient. The
then is
to the
sponse
unacceptably burdensome
in-person
whether the elimination of
after-
many
situation at
polling
Ohio
sites during
voting
hours and weekend
should be
where,
counties,
the 2004 election
in some
in
if plaintiffs
viewed
a vacuum—as
were
required
voters were
in
stand
line for
simply asserting
long
that because of their
(PID
long hours and until
night
late at
demographics they
work hours and other
1657-58).
1482-40,
Thus,
section
should be able to vote after hours and on
3509.03(1),
enacted,
as originally
was in-
get
weekends so that
can
the full
tended
pressure
to relieve the
on
sys-
of
in
in-person voting
benefit
—or
resulting
tem
from heavy turnout on elec-
decade,
context of Ohio
over the last
Further,
day.
experience shows that
grant
which includes Ohio’s remedial
Ohio voters havе taken increasing advan-
in-person
such extended
absentee-voting
tage
in-person
voting.
absentee
In the
opportunities,
the substantial exercise of
election,
500,000
presidential
last
close to
right,
largest
and the boards of Ohio’s
Ohio
in-person
voters cast
absentee bal-
availability
counties’ reliance on the
lots, of
appears
which it
a little over
voting.
such
If the
be
weighing must
done
100,000 were cast the weekend before the
abstract,
in
compelled
I would be
(PID 1053). Further,
election
in the 2008
dissent because the election case law does
election, the residents of Ohio’stwo largest
support
proposition that there is a
counties,
Franklin,
Cuyahoga and
cast
constitutional
to have
on
100,000
votes,
over
absentee
equally
terms that are
convenient for all
majority during
vast
after-hours and on
conclude, however,
voters.
I
weekends. These
budgeted
counties have
balancing
this case
Anderson/Burdick
planned
for the expected extended
reality,
should not be divorced from
hours and weekend in-person absentee
that both the burden and the legitimate
voting, especially the
regulatory interest should be
weekend before the
evaluated
(PID
1057-58).
1432-10,
context.
They
Scalia,
litigation,
7. Justices
and Alito would
been
Thomas
has
made
this
we cannot
weighing
that the
hold
of the burden on vot-
imposes
conclude
‘excessively
that the statute
against
legitimate regulatory
ers
the state’s
requirements’
any
burdensome
class of
by looking
interests must
be conducted
(quoting
voters.”
Id. at
tween UOCAVA and non-UOCAVA vot- military voters might
ers—concern be
deployed Friday sometime between eve-
ning day and election no relation to —had statutory sup- distinction and is not
ported by Secretary’s directive.
VII
Turning to the question remedy, I
understand the district court to have re-
quired Secretary Husted to in-per- restore
son absentee through Monday
preceding day. I would remand
the matter with give instructions to
Secretary and the General Assembly a short finite period which cure the Gregory (submitted), D. Weddle Attor- defects, constitutional with the under- ney, Office of the United Attorney, States standing failure to do so will result Island, IL, Rock for Plaintiff-Appellee. in the reinstatement of the preliminary Robinson, Littleton, Daxtrell D. CO, pro injunctiоn. se. CUDAHY, KANNE,
Before SYKES, Judges. Circuit PER CURIAM.
Daxtrell Robinson moved the district court to reduce his sentence based on ret- America, UNITED STATES roactive amendments to Sentencing Plaintiff-Appellee, Guidelines and the Sentencing Fair Act. 3582(c)(2). § See 18 U.S.C. The district court denied the motion. Because Robin- ROBINSON, Daxtrell Defendant- son was sentenced to the statutory mini- Appellant. mum and the Fair Sentencing Act does not No. 12-1391. him, apply to we affirm. Appeals,
United States Court of
Robinson pleaded guilty in
pos-
2005 to
Seventh Circuit.
sessing
grams
or more of crack cocaine.
841(a)(1).
§
See 21
govern-
U.S.C.
Aug.
Submitted
2012.
enhancement,
ment
filed a recidivism
Sept.
Decided
which
prison
raised the minimum
term for
years.
this offense to 20
See id.
(2004).
(b)(l)(A)(iii),
§§ 841
The dis-
imposed
trict court
the minimum sentence
years.
years
of 20
Three
later Robinson
3582(c)(2)
§
moved under
to reduce his
notes
voter in line at the
end
10,
Friday,
through
from October
2012
Octo-
regular
permit-
these
business hours must be
12, 2012;
ber
application
ted to make his or her
and vote.
(cid:127)
p.m., Monday through
8:00 a.m.
to 5:00
Id.
15,
Friday,
through
from October
2012
Octo-
2012;
ber
Celebrezze,
6. Anderson v.
460 U.S.
(cid:127)
p.m., Monday through
8:00
a.m.
7:00
(1983),